The current version of the American Bar Association Model Code of Judicial Conduct does not make any reference to social media, not surprising since, when it was adopted in 2007, Facebook had only been available outside of colleges for 1 year, Twitter was only 1 year old, and Instagram and Snapchat had not even been created. Even without an express reference, however, as numerous cases and advisory opinions have stated, the code obviously applies with equal force to virtual actions and on-line comments and in cyberspace as well as to more traditional forums for communication.
In addition, 4 states have adopted provisions in their codes that remind judges of their ethical obligations while on social media.
Most recently, the California Supreme Court adopted new language to commentary to Canon 2A that states:
A judge must exercise caution when engaging in any type of electronic communication, including communication by text or email, or when participating in online social networking sites or otherwise posting material on the Internet, given the accessibility, widespread transmission, and permanence of electronic communications and material posted on the Internet. The same canons that govern a judge’s ability to socialize in person, on paper, or over the telephone apply to electronic communications, including use of the Internet and social networking sites. Those canons include, but are not limited to Canon 2B(2) (lending the prestige of judicial office), 3B(7) (ex parte communications), 3B(9) (public comment on pending or impending proceedings), 3E(2) (disclosure of information relevant to disqualification), and 4A (conducting extrajudicial activities to avoid casting doubt on the judge’s capacity to act impartially, demeaning the judicial office, or frequent disqualification).
While judges are not prohibited from participating in online social networks, such as Facebook, Instagram, Snapchat, and the like, they should exercise restraint and caution in doing so. A judge should not identify himself as such, either by words or images, when engaging in commentary or interaction that is not in keeping with the limitations of this Code.
The West Virginia code includes a comment to Rule 3.1 that emphasizes: “The same Rules of the Code of Judicial Conduct that govern a judicial officer’s ability to socialize and communicate in person, on paper, or over the telephone also apply to the Internet and social networking sites like Facebook.”
The preamble to the New Mexico code encourages judges and judicial candidates “to pay extra attention to issues surrounding emerging technology, including those regarding social media” and urges them “to exercise extreme caution in its use so as not to violate the Code.”
* * *
A 2-part article analyzing the advisory opinions and discipline decisions on social media and judicial ethics was published in the spring and summer 2017 issues of the Judicial Conduct Reporter. Part 1 (http://tinyurl.com/y99relfw) was a general introduction to the topic and a discussion of issues related to judicial duties: “friending” attorneys, disqualification and disclosure, ex parte communications and independent investigations, and comments on pending cases. Part 2 (https://tinyurl.com/y8mdda4d) covered off-bench conduct: conduct that undermines public confidence in the judiciary, commenting on issues, abusing the prestige of office, providing legal advice, disclosing non-public information, charitable activities, political activities, and campaign conduct. Summaries of advisory opinions and cases up-dating the 2-part article are available here https://www.ncsc.org/~/media/Files/PDF/Topics/Center%20for%20Judicial%20Ethics/SocialMediaandJudicialEthics%20Update.ashx